EXHIBIT 10.14
GUARANTY
THIS GUARANTY, dated as of March 1, 1994, is made and given by EMPAK, INC.,
a Minnesota corporation (the "Guarantor"), in favor of FIRST BANK NATIONAL
ASSOCIATION, a national banking association (the "Bank").
RECITALS
A. The Bank has extended and/or may from time to time hereafter extend
credit accommodations to Xxxxx X. Xxxxxxx, a resident of the State of Minnesota
(the "Borrower").
B. In connection with those credit accommodations the Bank has required
that this Guaranty be executed and delivered by the Guarantor.
C. Guarantor leases real estate from the Borrower, the acquisition of which
has been financed by the Bank.
D. The Guarantor expects to derive benefits from the extension of credit
accommodations to the Borrower by the Bank and finds it advantageous, desirable
and in the best interests of the Guarantor to execute and deliver this Guaranty
to the Bank.
NOW, THEREFORE, In consideration of the credit accommodations to be
extended to the Borrower and for other good and valuable consideration, the
Guarantor hereby covenants and agrees with the bank as follows:
Section 1. Defined Terms. As used in this Guaranty the following terms
shall have the meaning indicated:
"Bank" shall have the meaning indicated in the opening paragraph
hereof.
"Borrower" shall have the meaning indicated in Recital A.
"Guarantor" shall have the meaning indicated in the opening paragraph
hereof.
"Obligations" shall mean all liabilities and obligations of the
Borrower to the Bank under that certain Loan Agreement by and between the
Borrower and the Bank and dated as of March 1, 1994, and all principal of,
and interest on, that certain promissory note of the Borrower to the Bank
dated March 1, 1994 and any extension, renewal or replacement thereof, in
all cases whether due or to become due, and whether now existing or
hereafter arising or incurred.
"Person" shall mean any individual, corporation, partnership, joint
venture, firm, association, trust, unincorporated organization, government
or governmental agency or political subdivision or any other entity,
whether acting in an individual, fiduciary or other capacity.
Section 2. The Guaranty. The Guarantor hereby absolutely and
unconditionally guarantees to the Bank the payment when due (whether at a stated
maturity or earlier by reason of acceleration or otherwise) and performance of
the Obligations.
Section 3. Continuing Guaranty. This Guaranty is an absolute,
unconditional, complete and continuing guaranty of payment and performance of
the Obligations, and the obligations of the Guarantor hereunder shall not be
released, in whole or in part, by any action or thing which might, but for this
provision of this Guaranty, be deemed a legal or equitable discharge of a surety
or guarantor, other than irrevocable payment and performance in full of the
Obligations. No notice of the Obligations to which this Guaranty may apply, or
of any renewal or extension thereof need be given to the Guarantor and none of
the foregoing acts shall release the Guarantor from liability hereunder. The
Guarantor hereby expressly waives (a) demand of payment, presentment, protest,
notice of dishonor, nonpayment or nonperformance on any and all forms of the
Obligations; (b) notice of acceptance of this Guaranty and notice of any
liability to which it may apply; (c) all other notices and demands of any kind
and description relating to the Obligations now or hereafter provided for by any
agreement, statute, law, rule or regulation; and (d) any and all defenses of the
Borrower pertaining to the Obligations except for the defense of discharge by
payment. The Guarantor shall not be exonerated with respect to the Guarantor's
liabilities under this Guaranty by any act or thing except irrevocable payment
and performance of the Obligations, it being the purpose and intent of this
Guaranty that the Obligations constitute the direct and primary obligations of
the Guarantor and that the covenants, agreements and all obligations of the
Guarantor hereunder be absolute, unconditional and irrevocable. The Guarantor
shall be and remain liable for any deficiency remaining after foreclosure of any
mortgage, deed of trust or security agreement securing all or any part of the
Obligations, whether or not the liability of the Borrower or any other Person
for such deficiency is discharged pursuant to statute, judicial decision or
Person for such or otherwise. The acceptance of this Guaranty by the Bank is not
intended and does not release any liability previously existing of any guarantor
or surety of any indebtedness of the Borrower to the Bank.
Section 4. Other Transactions. The Bank is expressly authorized (a) to
exchange, surrender or release with or without consideration any or all
collateral and security which may at any time be placed with it by the Borrower
or by any other Person or to forward or deliver any or all such collateral and
security directly to the Borrower for collection and remittance or for credit,
or to collect the same in any other manner without notice to the Guarantor; and
(b) to amend, modify, extend or supplement the Credit Agreement, any note or
other instrument evidencing the Obligations or any part thereof and any other
agreement with respect to the Obligations, waive compliance by the Borrower or
any other Person with the respective terms thereof and settle or compromise any
of the Obligations without notice to the Guarantor and without in any manner
affecting the absolute liabilities of the
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Guarantor hereunder. No invalidity, irregularity or unenforceability of all or
any part of the Obligations or of any security therefor or other recourse with
respect thereto shall affect, impair or be a defense to this Guaranty. The
liabilities of the Guarantor hereunder shall not be affected or impaired by any
failure, delay, neglect or omission on the part of the Bank to realize upon any
of the Obligations of the Borrower to the Bank, or upon any collateral or
security for any or all of the Obligations, nor by the taking by the Bank of (or
the failure to take) any other guaranty or guaranties to secure the Obligations,
nor by the taking by the Bank of (or the failure to take or the failure to
perfect its security interest in or other Lien on) collateral or security of any
kind. No act or omission of the Bank, whether or not such action or failure to
act varies or increases the risk of, or affects the rights or remedies of the
Guarantor, shall affect or impair the obligations of the Guarantor hereunder.
The Guarantor acknowledges that this Guaranty is in effect and binding without
reference to whether this Guaranty is signed by any other Person or Persons,
that possession of this Guaranty by the Bank shall be conclusive evidence of due
delivery hereof by the Guarantor and that this Guaranty shall continue in full
force and effect, both as to the Obligations then existing and/or thereafter
created notwithstanding the release of or extension of time to any other
guarantor of the Obligation or any part thereof.
Section 5. Actions Not Required. The Guarantor hereby waives any and all
right to cause a marshalling of the assets of the Borrower or any other action
by any court or other governmental body with respect thereto or to cause the
Bank to proceed against any security for the Obligations or any other recourse
which the Bank may have with respect thereto and further waives any and all
requirements that the Bank institute any action or proceeding at law or in
equity, or obtain any judgment, against the Borrower or any other Person, or
with respect to any collateral security for the Obligations, as a condition
precedent to making demand on or bringing an action or obtaining and/or
enforcing a judgment against, the Guarantor upon this Guaranty. The Guarantor
further acknowledges that time is of the essence with respect to the Guarantor's
obligations under this Guaranty. Any remedy or right hereby granted which shall
be found to be unenforceable as to any Person or under any circumstance, for any
reason, shall in no way limit or prevent the enforcement of such remedy or right
as to any other Person or circumstance, nor shall such unenforceability limit or
prevent enforcement of any other remedy or right hereby granted.
Section 6. No Subrogation. Notwithstanding any payment or payments made by
the Guarantor hereunder or any setoff or application of funds of the Guarantor
by the Bank, the Guarantor shall not be entitled to be subrogated to any of the
rights of the Bank against the Borrower or any other guarantor or any collateral
security or guaranty or right of offset held by the Bank for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the borrower or any other guarantor in
respect of payments made by the Guarantor hereunder, until all amounts owing to
the Bank by the borrower on account of the Obligations are paid in full. If any
amount shall be paid to the Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in full, such
amount shall be held by the Guarantor in trust for the Bank, segregated from
other fund of the Guarantor, and shall, forthwith upon receipt by the Guarantor,
be turned over to the Bank, if required), to be applied against the Obligations,
whether matured or
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unmatured, in such order as the Bank may determine. Notwithstanding any of the
foregoing, to the extent
(a) any right of subrogation which the Guarantor may have pursuant to
this Guaranty or otherwise, or
(b) any right of reimbursement or contribution or similar right
against the Borrower, any property of the Borrower or any other guarantor
of any of the Obligations
would result in the Guarantor being a "creditor" of the Borrower within the
meaning of Section 547 of Title 11 of the United States Bankruptcy Code as now
in effect or hereafter amended, or any comparable provision of any successor
statute, the Guarantor hereby irrevocably waives such right of subrogation,
reimbursement or contribution.
Section 7. Application of Payments. Any and all payments upon the
Obligations made by the Guarantor or by any other Person, and/or the proceeds of
any or all collateral or security for any of the Obligations, may be applied by
the Bank on such items of the Obligations as the Bank may elect.
Section 8. Recovery of Payment. If any payment received by the Bank and
applied to the Obligations is subsequently set aside, recovered, rescinded or
required to be returned for any reason (including, without limitation, the
bankruptcy, insolvency or reorganization of the Borrower or any other obligor),
the Obligations to which such payment was applied shall for the purposes of this
Guaranty be deemed to have continued in existence, notwithstanding such
application, and this Guaranty shall be enforceable as to such Obligations as
fully as if such application had never been made. References in this Guaranty to
amounts "Irrevocably paid" or to "irrevocable payment" refer to payments that
cannot be set aside, recovered, rescinded or required to be returned for any
reason.
Section 9. Borrower's Financial Condition. The Guarantor is familiar with
the financial condition of the Borrower, and the Guarantor has executed and
delivered this Guaranty based on the Guarantor's own judgment and not in
reliance upon any statement or representation of the Bank. The Bank shall have
no obligation to provide the Guarantor with any advice whatsoever or to inform
the Guarantor at any time of the Bank's actions, evaluations or conclusions on
the financial condition or any other matter concerning the Borrower.
Section 10. Remedies. All remedies afforded to the Bank by reason of this
Guaranty are separate and cumulative remedies and it is agreed that no one of
such remedies, whether or not exercised by the Bank, shall be deemed to be in
exclusion of any of the other remedies available to the Bank and shall in no way
limit or prejudice any other legal or equitable remedy which the Bank may have
hereunder and with respect to the Obligations. Mere delay or failure to act
shall not preclude the exercise or enforcement of any rights and remedies
available to the Bank.
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Section 11. Bankruptcy of the Borrower. The Guarantor expressly agrees that
the liabilities and obligations of the Guarantor under this Guaranty shall not
in any way be impaired or otherwise affected by the institution by or against
the Borrower or any other Person of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or any other similar proceedings for
relief under any bankruptcy law or similar law for the relief of debtors and
that an discharge of any of the Obligations pursuant to any such bankruptcy or
similar law or other law shall not diminish, discharge or otherwise affect in
any way the obligations of the Guarantor under this Guaranty, and that upon the
institution of any of the above actions, such obligations shall be enforceable
against the Guarantor.
Section 12. Costs and Expenses. The Guarantor will pay or reimburse the
Bank on demand for all out-of-pocket expenses (including in each case all
reasonable fees and expenses of counsel) incurred by the Bank arising out of or
in connection with the enforcement of this Guaranty against the Guarantor or
arising out of or in connection with any failure of the Guarantor to fully and
timely perform the obligations of the Guarantor hereunder.
Section 13. Waivers and Amendments. This Guaranty can be waived, modified,
amended, terminated or discharged only explicitly in a writing signed by the
Bank. A waiver so signed shall be effective only in the specific instance and
for the specific purpose given.
Section 14. Notices. Any notice or other communication to any party in
connection this Guaranty shall be in writing and shall be sent by manual
delivery, telegram, telex, facsimile transmission, overnight courier or United
States mail (postage prepaid) addressed to such party at the address specified
on the signature page hereof, or at such other address as such party shall have
specified to the other party hereto in writing. All periods of notice shall be
measured from the date of delivery hereof if manually delivered, from the date
of sending thereof if sent by telegram, telex or facsimile transmission, from
the first business day after the date of sending if sent by overnight courier,
or from four days after the date of mailing if mailed.
Section 15. Guarantor Acknowledgements. The Guarantor hereby acknowledges
that (a) counsel has advised the Guarantor in the negotiation, execution and
delivery of this Guaranty, (b) the Bank has no fiduciary relationship to the
Guarantor, the relationship being solely that of debtor and creditor, and (c) no
joint venture exists between the Guarantor and the Bank.
Section 16. Representations and Warranties. The Guarantor hereby represents
and warrants to the Bank that:
16(a) The Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority and the legal right
to own and operate its properties and to conduct the business in which it
is currently engaged.
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16(b) The Guarantor has the corporate power and authority and the
legal right to execute and deliver, and to perform its obligations under,
this Guaranty and has taken all necessary corporate action to authorize
such execution, delivery and performance.
16(c) This Guaranty constitutes its legal, valid and binding
obligation enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
16(d) The execution, delivery and performance of this Guaranty will
not (i) violate any provision of any law, statute, rule or regulation or
any order, writ, judgment, injunction, decree, determination or award of
any court, governmental agency or arbitrator presently in effect having
applicability to the Guarantor, (ii) violate or contravene any provision of
its Articles of Incorporation or bylaws, or (iii) result in a breach or
constitute a default under any indenture, loan or credit agreement or any
other agreement, lease or instrument to which it is a party or by which it
or any of its properties may be bound or result in the creation of any lien
thereunder. The Guarantor is not in default under or in violation of any
such law, statute, rule or regulation, order, writ, judgment, injunction,
decree, determination or award or any such indenture, loan or credit
agreement or other agreement, lease or instrument in any case in which the
consequences of such default or violation could have a material adverse
effect on its business, operations, properties, assets or condition
(financial or otherwise).
16(e) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by,
any governmental or public body or authority is required on the part of the
Guarantor to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, this Guaranty.
16(f) There are no actions, suits or proceedings pending or, to the
knowledge of the Guarantor, threatened against or affecting it or any of
its properties before any court or arbitrator, or any governmental
department, board, agency or other instrumentality which, if determined
adversely to the Guarantor, would have a material adverse effect on its
business, operations, property or condition (financial or otherwise) or on
its ability to perform its obligations hereunder.
16(g) It expects to derive benefits from the transactions resulting in
the creation of the Obligations. The Bank may rely conclusively on the
continuing warranty, hereby made, that the Guarantor continues to be
benefitted by the Bank's extension of credit accommodations to the Borrower
and the Bank shall have no duty to inquire into or confirm the receipt of
any such benefits, and this Guaranty shall be effective and enforceable by
the Bank without regard to the receipt, nature or value of any such
benefits.
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Section 17. Continuing Guaranty. This Guaranty shall (a) remain in full
force and effect until irrevocable payment in full of the Obligations and the
expiration of the obligations, if any, of the Bank to extend credit
accommodations to the Borrower, (b) be binding upon the Guarantor, its
successors and assigns and (c) inure to the benefit of, and be enforceable by,
the Bank and its respective successors, transferees, and assigns.
Section 18. Governing Law and Construction. THE VALIDITY, CONSTRUCTION AND
ENFORCEABILITY OF THIS GUARANTY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT
GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS.
Whenever possible, each provision of this Guaranty and any other statement,
instrument or transaction contemplated hereby or relating hereto shall be
interpreted in such manner as to be effective and valid under such applicable
law, but if any provision of this Guaranty or any other statement, instrument or
transaction contemplated hereby or relating hereto shall be held to be
prohibited or invalid under such applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty or any other statement, instrument or transaction contemplated hereby
or relating hereto.
Section 19. Consent to Jurisdiction. AT THE OPTION OF THE BANK, THIS
GUARANTY MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING
IN MINNEAPOLIS OR ST. XXXX, MINNESOTA; AND THE GUARANTOR CONSENTS TO THE
JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN
SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THE GUARANTOR COMMENCES ANY ACTION
IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING
DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS GUARANTY, THE BANK
AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
Section 20. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
Section 21. Covenants. The Guarantor agrees that the covenants and
agreements of the Guarantor set forth in Articles V and VI of that certain Loan
Agreement made by and between the Guarantor and the Bank of even date with this
Guaranty (as hereafter amended, the "Loan Agreement") (a) are incorporated
herein by reference as if fully set forth herein, including all necessary
definitions and
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related provisions of the Loan Agreement, and (b) shall survive and be binding
upon the Guarantor following termination of the Loan Agreement until the
obligations are irrevocably paid in full.
Section 22. General. All representations and warranties contained in this
Guaranty or in any other agreement between the Guarantor and the Bank shall
survive the execution, delivery and performance of this Guaranty and the
creation and payment of the Obligations. Captions in this Guaranty are for
reference and convenience only and shall not affect the interpretation or
meaning of any provision of this Guaranty.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the date
first above written.
EMPAK, INC.
By
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Its
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Address:
000 Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
FAX: (000) 000-0000
Address for the Bank:
First Bank National Association
First Bank Place
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Fax (000) 000-0000
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GUARANTOR'S ACKNOWLEDGMENT
The undersigned has guaranteed payment and performance of obligations of
Xxxxx X. Xxxxxxx (the "Borrower") to U.S. Bank National Association (the "Bank")
pursuant to the terms of a Guaranty, dated, as of Xxxxx 0, 0000 (xxx
"Xxxxxxxx"), which obligations include without limitation obligations under the
Loan Agreement, dated as of March 1, 1994 between the Borrower and the Bank (as
amended, the "Credit Agreement"). The undersigned acknowledges that it has
received a copy of the proposed First Amendment to the Credit Agreement, to be
dated on or about September 22, 1998 (the "Amendment"). The undersigned agrees
and acknowledges that the Amendment shall in no way impair or limit the right of
the Bank under the Guaranty, and confirms that by the Guaranty, the undersigned
continues to guaranty payment and performance of the obligations of the Borrower
to the Bank, including without limitation obligations under the Credit Agreement
as amended pursuant to the Amendment, and under the Note issued in connection
with the Amendment. The undersigned hereby confirms that the Guaranty remains in
full force and effect, enforceable against the undersigned in accordance with
its terms.
EMPAK, INC.
By: /s/ Xxxxx Xxxxxxx
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Title: President
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